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The impact of Monday’s ruling from a federal appeals court — that Georgia’s county sheriffs are state actors entitled to immunity from civil rights suits — rippled through the legal community on Tuesday. Attorneys for civil rights plaintiffs wondered whether the 6-5 decision from the 11th U.S. Circuit Court of Appeals also could shield city police officers and department store security guards from suits, as the dissenting judges predicted. A lawyer for the Georgia Sheriffs Association said he was pleased with the ruling, but added he was concerned that county sheriffs might need more insurance to cover their liability from suits brought against them personally — the only avenue left to plaintiffs. Staff at the Georgia attorney general’s office pored over the 89-page decision to see whether they might be required to defend county sheriffs in state court cases. And an academic speculated that someone might follow a theory suggested by some of the dissenters: That although sheriffs were state actors immune from suits, county sheriff’s departments still were subject to liability and the possible money damages suits would incur. The court’s decision, said Lawrence J. LoRusso, general counsel to the Georgia Fraternal Order of Police, “creates a lot of questions.” Theodore H. Lackland of Atlanta’s Lackland & Associates, whose client sued a sheriff, had one question on his mind, and it was more pressing than all of the others combined: What, if anything, was left of his client’s case? “Who knows?” Lackland asked rhetorically. He said he would look through the decision and see whether there was any basis to appeal the 11th Circuit ruling to the U.S. Supreme Court. Lackland represents Willie Santonio Manders, who sued Clinch County Sheriff Winston Peterson and others, claiming in 1997 that one of Peterson’s deputies repeatedly struck him in the head, neck and face while he was in the county jail. Peterson has denied the allegations, according to his attorney, Richard K. Strickland of Brunswick’s Whelchel, Brown, Readdick & Bumgartner. BITTER DISPUTE A district court judge had ruled that Peterson could be held liable for the alleged beating, but the 11th Circuit reversed, in what appeared to be a bitter dispute between Judges Frank M. Hull and Rosemary Barkett. The two judges clashed during oral argument last fall, with Hull arguing that sheriffs were state actors and Barkett arguing the opposite. They led opposing factions three weeks ago in a 6-6 vote in another case about Georgia sheriffs’ immunity. In that case, Grech v. Clayton County, No. 01-13151, Senior Judge Phyllis A. Kravitch voted with Barkett; she was allowed to participate in the court’s vote because she had been on the original three-judge panel that decided the matter. But in Monday’s case, Manders v. Lee, No. 01-13606, Kravitch had not been part of the original panel and had to sit out, leaving Barkett’s faction one vote short. The result was a 6-5 vote carried by Hull, Chief Judge J.L. Edmondson and Judges Susan H. Black, Edward E. Carnes, Joel F. Dubina and Stanley Marcus. Hull discounted language in the Georgia Constitution calling sheriffs “county officers,” writing that the distinction merely reflected the sheriffs’ geographic jurisdiction. Hull added later that although Clinch County bore the major burden of funding Peterson’s office and the jail, it did so because of mandates from the state General Assembly. Peterson, Hull concluded, “functions as an ‘arm of the state’ in establishing use-of-force policy at the jail and in training and disciplining his deputies.” As such, Hull added, Peterson was entitled to immunity from the 11th Amendment of the U.S. Constitution, which shields state governments from federal suits. In a footnote, Hull stressed that this case did not involve medical care in the jails. That note could have been meant to reassure observers that federal civil rights suits that have forced DeKalb and Fulton counties to improve their jail’s medical care could not be affected by the decision. DRAWING THE LINE Nonetheless, Barkett and Judges Gerald B. Tjoflat, R. Lanier Anderson III, Stanley F. Birch Jr. and Charles R. Wilson did not sound comforted by the limitations on the majority decision. Barkett called Hull’s contention that the sheriffs’ state actor status stemmed from authority conferred by the state government “a blatant end-run around” the proper way to view the case, a method that immunized virtually every function served by sheriffs. “Even more radically,” Barkett wrote, “this argument implies that Eleventh Amendment immunity extends beyond sheriffs to city police officers, county police officers and even private security guards. “All of these individuals, from the Chief of the Atlanta Police Department to the employee keeping watch over the cosmetics aisle of a department store, act on authority vested in them by state law when using force to effectuate arrests for violations of state law,” she added. Barkett argued later that it did not make sense that sheriffs were state actors because county governments have the authority to pay attorney fees incurred by sheriffs in defending civil rights suits. The question of who would pay to defend sheriffs from personal suits stemming from official duties was the only cloud on the ruling, according to Oliver Hunter, deputy general counsel of the Georgia Sheriffs Association. “The implications are rather substantial,” said Hunter, adding that sheriffs’ potential personal liability “puts more pressure on them.” Strickland, Peterson’s lawyer, noted that even in a personal suit, a sheriff could get shielded by qualified immunity that protects law enforcement officials from claims stemming from uncertain constitutional violations. Strickland dismissed Barkett’s fears that the decision would extend to shield local police officers and security guards as “a ‘sky is falling’ analysis,” saying the law viewed police and security officers very differently than county sheriffs. Decatur civil rights lawyer Craig T. Jones said Barkett’s conclusion that local police and security officers could be immunized by the sheriffs’ decision “would be an extreme extension.” NO EFFECT ON AG But he spun several puzzling scenarios about the impact of the decision. In one, he said plaintiffs’ lawyers planning on suing a sheriff, even in his individual capacity, would have to file a notice with the state attorney general as required by the state tort claims act, which controls state suits against the government. Asked about this possibility, LoRusso, the police lawyer, said, “I don’t think anyone knows” whether the AG’s responsibilities will extend now to representing county sheriffs. Russell D. Willard, a spokesman for Attorney General Thurbert E. Baker, said late Tuesday that a decision by the 11th Circuit about federal civil rights suits “does not affect the state law determination of who the Attorney General represents.” And under the state constitution, for the purposes of answering this question, sheriffs are “county officials” who are not entitled to be represented by the state attorney general, Willard added. Karen M. Blum, who teaches police misconduct law at Suffolk University Law School in Boston, suggested that a separate dissent by Judge Anderson viewed the case most accurately. Anderson, joined by Tjoflat, Birch and Wilson, cited a 1998 decision of the 7th Circuit, Franklin v. Zaruba, 150 F.3d 682, in which the court held an Illinois sheriff was not entitled to immunity as a state actor. The reason: The sheriff was an agent of the county sheriff’s department, which is not a state entity and was therefore subject to suits.

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